Amsterdam Leather Bag, Inc. v. New York Property Insurance Underwriting Ass'n

240 A.D.2d 272, 659 N.Y.S.2d 10, 1997 N.Y. App. Div. LEXIS 6574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 2,1996, which denied plaintiff’s motion to restore the action to the trial calendar, and granted defendant’s cross motion to dismiss the action pursuant to CPLR 3404, unanimously affirmed, without costs.

The action, which Supreme Court, at a preliminary conference, had directed be transferred to Civil Court pursuant to CPLR 325 (d), but which directive was never implemented apparently due to clerical error, was properly dismissed pursuant to CPLR 3404 for plaintiff s failure to show a reasonable excuse for its five-year inactivity after the court’s transfer directive, a meritorious cause of action, lack of intent to abandon the action and lack of prejudice to defendant (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 722, appeal dismissed 69 NY2d 874). Service of CPLR 3216 90-day notice was not necessary since plaintiff had served and filed a note of issue prior to the transfer directive (see, Chase v Scavuzzo, 87 NY2d 228, 233). The matter never having been transferred, Supreme Court retained jurisdiction over it. Concur—Milonas, J. P., Ellerin, Nardelli, Williams and Mazzarelli, JJ.